Employee Terminated for Testifying in Co-workers Discrimination Lawsuit May Proceed with Anti-Retaliation Lawsuit

The New Jersey Appellate Division recently reversed in part and affirmed in part a grant of summary judgment dismissing Plaintiff’s failure-to-accommodate under the New Jersey Law Against Discrimination and retaliation claims. The Court agreed with the prior determination that after Plaintiff had exhausted her Family and Medical Leave Act benefits and she could not provide a definite date of when she could return to work she was not entitled to an “indefinite leave of absence.” However, the Court disagreed with the prior determination that Plaintiff failed to establish a prima facie case of retaliation because there was only indirect evidence that Defendants had knowledge of her involvement in a co-worker’s discrimination lawsuit.

In Lozo-Weber v. State of New Jersey, the Plaintiff, Ms. Lozo-Weber, was employed by the Department of Human Services and worked as an occupational therapist at the New Lisbon Development Center from November 2003 through April 2009. Ms. Lozo-Weber, a Caucasian female, witnessed what she thought to be discriminatory actions being taken against her co-workers by direct supervisor Brian Kelly and Beth Cooper, who acted as a liaison between Kelly and the other workers. From August 2004 to the time Mrs. Lozo-Weber went on maternity leave and disability for lupus, she observed the firing and relocation of various staff members who were African American or Asian. In addition to her own belief that supervisors’ actions were racially motivated, Mrs. Lozo-Weber was told that she “needed to align herself with the right side” when she addressed her concerns about the relocation of certain minority employees.

After Mrs. Lozo-Weber returned from maternity leave, she acted as a witness in a co-worker’s lawsuit against the Department of Human Services, New Lisbon Development Center and supervisors Kelly and Cooper. She then began to receive negative comments about her performance when prior to her involvement as a witness; she had received consistently stellar performance evaluations. Despite the negative comments, Mrs. Lozo-Weber continued to receive positive performance evaluations until January 9, 2008. On that date, New Lisbon Development Center issued a preliminary notice of disciplinary action against Mrs. Lozo-Weber that charged her with neglect of duty, falsification and actual or attempted theft of State property. After a hearing, all the charges were dismissed and Mrs. Lozo-Weber was awarded back pay.

Soon thereafter, Mrs. Lozo-Weber went on medical leave pursuant to the Family and Medical Leave Act (FMLA) due to her lupus condition. Her original FMLA leave period was approved from July 21, 2008 through October 10, 2008. Mrs. Lozo-Weber was not able to return to work at the end of her initial leave and was approved for an extension until April 12, 2009 but was warned that if she could not return to work on this date, she would not be awarded anymore extensions but could resign in good standing so long as it was on or before April 13, 2009. Mrs. Lozo-Weber could not return to work by April 12, 2009 and her doctor provided a note that stated she would be able to return “approximately May 29, 2009.” On May 15, 2009, after Mrs. Lozo-Weber had still not returned to work, she was considered to have abandoned her position and her resignation was deemed not in good standing.

The Appellate Division reversed summary judgment as to the retaliation claim but affirmed summary judgment on the failure to accommodate claim. The Court stated that the New Jersey Law Against Discrimination forbids any person to take reprisal against a person who has filed a complaint, testified or assisted in any proceeding protected under the Act. The court noted that the lack of direct evidence supporting the notion that Mrs. Lozo-Weber’s supervisors were aware of her acting as a witness in her co-workers case did not negate knowledge as required to establish a prima facie case of retaliation. The Court disagreed with the trial court in finding that a reasonable jury could find that Mrs. Lozo-Weber’s supervisors knew of her involvement in the lawsuit by reading the complaint and by her general statements in support of her co-worker when the issue was discussed in the workplace. In regards to her disability discrimination claim, the Court found that an indefinite unpaid leave is not a reasonable accommodation and since Mrs. Lozo-Weber was never able to specify a definite date she could return to work she would not have a valid claim under the New Jersey Law Against Discrimination.

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